text:
SIDNEY BOURNE and RITA BOURNE v. ELIZABETH QUIRK, JONATHAN GOSSELS, JONATHAN O'BRIEN, STEPHEN GARANIN and JEFFREY KLOFFT as members of the SUDBURY ZONING BOARD OF APPEALS; WILLIAM KELLER JR., LAWRENCE O'BRIEN and JOHN DROBINSKI as members of the SUDBURY BOARD OF SELECTMEN; NORTHWOOD AT SUDBURY CONDOMINIUM TRUST, NORTHWOOD PROPERTIES LLC, FIRST COLONY DEVELOPMENT CORPORATION, FIRST COLONY NORTHWOOD LLC, and JON PRISCOLI individually and as PRESIDENT OF FIRST COLONY DEVELOPMENT CORPORATION and MANAGER OF FIRST COLONY NORTHWOOD LLC.
Middlesex, ss.
LONG, J.
MISC 12-465978 : SIDNEY BOURNE and RITA BOURNE v. ELIZABETH QUIRK, BENJAMIN STEVENSON, JEFFREY KLOFFT, JONATHAN O'BRIEN, and JONATHAN PATCH as members of the SUDBURY ZONING BOARD OF APPEALS; NORTHWOOD AT SUDBURY CONDOMINIUM TRUST, and FIRST COLONY NORTHWOOD LLC.
The above-captioned cases involve the Northwood at Sudbury Condominium ("Northwood") and, more precisely, what age restrictions it must maintain and what facilities and services it must provide to be a "Residential Care Facility" under the Sudbury zoning bylaw and thus be an allowable use in its zoning district (the Research District). They also present the question of whether, and to what extent, the specifics of these issues are properly before the court at this time.
The Sudbury town bylaw defines a "Residential Care Facility" as one which provides "assisted living and/or independent living arrangements to persons 55 years or older in one or more buildings." Bylaw §7000 (Definitions). With few exceptions, none applicable here, all other residential uses are prohibited in this district. Site plan approval from the Board of Selectmen is needed before a Residential Care Facility may be built, and the Selectmen have authority to set conditions in connection with that approval to ensure that the facility is, and remains, zoning compliant. See Bylaw §6300; Jt. Pre-Trial Statement, Agreed Fact #10 (Jan. 31, 2013).
When Northwood received site plan approval on November 14, 1997, [Note 1] that approval was conditioned on 100% occupancy by persons 55 and older, [Note 2] the construction and maintenance of numerous specified on-site facilities, and the continuing provision of numerous specified residential care services. No appeal was taken from that decision, and plaintiffs Sidney and Rita Bourne purchased their unit in reliance on the conditions it imposed. Years later, after the project's development rights changed hands, [Note 3] the new developer (Castagna Construction Corp.) and the condominium trustees petitioned the Selectmen to modify those conditions in two respects: first, by eliminating the requirement that all units be occupied by persons 55 or older, dropping it to 80% so that 20% of the units could be sold without any age restriction whatsoever, and second, by eliminating the mandatory on-site facility and care requirements in their entirety and allowing the condominium's board of trustees full discretion to determine what facilities and care would be provided. [Note 4] The Board of Selectmen approved the reduction of "over 55" occupants to 80% — indeed, the board went further by finding that the 80% would be satisfied if even one of the residents in those units was over 55 — and approved the elimination of the mandatory facilities and care requirements, allowing the trustees to choose what facilities and services would be provided so long as they satisfied the bylaw definition. No guidance was given as to what that definition required, except for the suggestion that: (1) mere "coordination" of services might suffice (without explaining how such coordination would take place, or requiring any aspect of that coordination, or any of the services themselves, to be on-site), and (2) the non-exclusive designation of one room in the entire complex as available for visiting nurses, therapists and other medical personnel to examine and consult with unit owners, might be the only on-site space necessary for the development to qualify as a Residential Care Facility. [Note 5]
The Bournes and other residents appealed that decision to the Sudbury Zoning Board of Appeals. The ZBA affirmed the Selectmen [Note 6] and the Bournes then took a G.L. c. 40A, §17 appeal from that affirmance to this court (Case No. 10 MISC. 434334 (KCL)). I affirm my previous ruling that Bylaw §6390A validly authorized an immediate appeal from the ZBA's decision to this court rather than waiting for board review of a building inspector's ruling either issuing or denying a building permit or allowing or denying a zoning enforcement request. See Mem. & Order on Defendant Northwood at Sudbury Condominium Trust's Motion to Dismiss (Apr. 12, 2013), citing Wildstar Farm LLC v. Planning Bd. of Westwood, 2012 WL 468226 (Mass. App. Ct. 2012) (Rule 1:28 disposition, unpublished). [Note 7]
Northwood changed developers once again and, on October 18, 2011, the new developer (defendant First Colony Northwood LLC) applied for further modifications to the site plan, this time to make minor alterations to elevations, change interior floor plans, re-locate two new duplexes, and implement certain stormwater control measures. These modifications were denied by the building inspector and then, on January 5, 2012, denied by the Selectmen [Note 8] on the ground that the elimination of the requirement for 100% over-55 occupation made Northwood non- compliant with zoning. [Note 9] No appeal from the Selectmen's decision was taken. Instead, on February 28, 2012, the developer filed a building permit application based on the modifications the Selectmen had rejected. The building inspector denied the building permit, [Note 10] an appeal was taken from that denial to the ZBA, and the ZBA directed that the building permit issue, ruling that the Selectmen had exceeded their authority in their January 5 denial. The Bournes appealed the ZBA's decision to this court pursuant to G.L. c. 40A, §17, arguing that the ZBA's reversal should be vacated due to the developer's failure to take an appeal from the Selectmen's decision within the 30 days prescribed by G.L. c. 40A, §15, i.e. that, under Bylaw §6390, the developer was required to appeal the Selectmen's decision rather than waiting for a building permit rejection (Case No. 12 MISC. 465978 (KCL)). In the alternative, the Bournes contend that the ZBA's decision approving the modifications should be vacated on the merits.
The cases were tried together before me, jury-waived. The plaintiffs presented three witnesses: plaintiff Sidney Bourne, former Sudbury building inspector James Kelly, [Note 11] and Christopher Wise, a developer of independent living facilities in Massachusetts. Neither the ZBA, the condominium trustees, nor the developer (First Colony) offered testimony from anyone else, fact or expert.
For the reasons set forth below, based on the testimony and exhibits admitted into evidence and my assessment of the credibility, weight, and inferences to be drawn from that evidence, I VACATE and REMAND the ZBA's decisions in both cases, retaining jurisdiction of the cases for purposes of post-remand review. In Case No. 10 MISC. 434334 (KCL), it was error for the ZBA to allow the "over-55" reduction from 100% to 80% and to issue a ruling without baseline requirements on the services and on-site facilities necessary to "provide assisted and/or independent living arrangements" within the meaning of the bylaw. The case is thus remanded to require 100% over-55 occupancy (with the exception of spouses) and to set forth baseline on-site facility and care requirements. As explained below, the suggestions contained in the vacated decisions do not satisfy the bylaw. In Case No. 12 MISC. 465978 (KCL), the case is remanded for reconsideration in light of the services and on-site facilities directed by the new board decision in Case No. 10 MISC. 434334, which may or may not affect the particulars of the modified plans the ZBA decision approved.
These are the facts as I find them after trial.
The Northwood site is located at 142 North Road in the town's Research District. All residential uses are prohibited in that district with only the following exceptions: residential care facilities, nursing or convalescent homes, assisted care facilities, senior residential communities (by special permit), and incentive senior developments (by special permit). See Zoning Bylaw §2230, Appendix A (Table of Principal Use Regulations). The bylaw defines a "residential care facility" as one which provides "assisted and/or independent living to persons 55 years or older in one or more buildings." Bylaw §7000 (Definitions). As previously noted, the bylaw requires site plan approval from the Board of Selectmen before a residential care facility may be built, and the Selectmen have authority to set conditions in connection with that approval to ensure that the facility is, and remains, zoning compliant.
In 1997, the Conant-Welch Group applied to the Selectmen for site plan approval to construct Northwood as a residential care facility. [Note 12] Northwood was the first and, to this day, the only such application — no other "residential care facility" has ever been proposed or developed— and it led to lengthy discussions at multiple hearings focused on the twin issues of (1) what the bylaw required for a development to be a "residential care facility," and (2) what measures would be required to ensure it remained so.
The bylaw's language —"[t]he provision of assisted living and/or independent living arrangements" — has three constituent requirements, each of which must be met for a development to qualify: (1) the provision of assisted living and/or independent living arrangements, (2) to persons 55 or older, (3) in one or more buildings. (emphasis added). See Shirley Wayside Limited Partnership v. Bd. of Appeals of Shirley, 461 Mass. 469 , 477 (2012) (bylaw to be enforced "according to its plain wording unless a literal construction would yield an absurd or unworkable result[,]…giv[ing] effect to all its provisions so that no part will be inoperative or superfluous.") (internal citations omitted). During the 1997 hearings, the Selectmen addressed each of these requirements in detail.
They began with the age restriction. As the bylaw says, the occupants of a "residential care facility" must be 55 or older. At the hearings, counsel for the Conant-Welch Group stated that the age restriction would be part of the condominium's Master Deed and "it will always be there as a constant reminder to those who will be purchasing the property." 1997 Site Plan Decision at 4 (Nov. 14, 1997). As he noted, "[t]ypically, in developments such as this, people are very protective and want the complex to maintain its character as an age 55-and older development." Id. The Selectmen were assured that "this is only one source of protection for a 55-and-over development." Id. at 5. Other sources of protection, he stated, included the bylaw itself where "if someone were occupying in violation of the zoning restriction, the Town would have recourse under its zoning law to prohibit such occupancy." Id.
Discussion then turned to the services required and on-site facilities necessary for the provision of "assisted living and/or independent living arrangements...in one or more buildings." The developer's representative said that Northwood was being designed, at least initially, for "well seniors…the active and healthy group which doesn't require a lot of services immediately." 1997 Site Plan Decision at 3 (emphasis added). However, he stated, "it [was] fully anticipated that over time these residents may require such services" and these, he assured the board, "will be in place when they are needed." Id. Moreover, he continued, "[t]his facility may also well attract seniors who do in fact have some on-going health-service requirements, which will also be available as needed." Id. (emphasis added).
Selectwoman Clark [Note 13] asked whether the development fell within the reach of G.L. c. 19D and was thus required to comply with its regulations governing "assisted living." See 1997 Site Plan Decision at 8. When the developer said "no" — Northwood would not be an "assisted living residence" subject to state-mandated and supervised minimum standards, but rather one providing "independent living arrangements" outside state control, thus leaving the town as its sole supervising authority [Note 14] — Ms. Clark and her fellow Selectmen pressed for specific commitments (1) to pin down what those "independent living arrangements" would be, (2) to evaluate whether they were sufficient to meet the bylaw requirements, and (3) to ensure they would remain in place in the future, subject to ready, verifiable, monitoring and enforcement. Ms. Clark was especially concerned that there be dedicated common areas, particularly a common dining area "where daily meals are taken on a regular basis, thus providing socialization, rather than the isolation fostered by 'meals on wheels'." Id. The other two Selectmen – Chairman Blacker and Mr. Drobinski – were also concerned about the developer's approach, stating that "the mere presence of a listing of services in the lobby" did not meet "the requirements to make this a residential care facility." Id. at 9. The Selectmen then continued the hearing to a later date to get further information from the developer in response to these issues.
When the Selectmen reconvened the hearing in October 1997, they again returned to a discussion of what constitutes a residential care facility within the meaning of the bylaw. In response to the questions raised by the Selectmen at the September session, the developer submitted a letter stating that the facility would include exercise rooms, a swimming pool, a green house and gardening, a common kitchen and dining area, a library and lounge, a convenience store, meeting and craft rooms, administrative offices, and a nurses' and wellness clinic. 1997 Site Plan Decision at 9. The developer also stated that there would be a contract with an outside company (Parmenter Health Services) to provide health services on an "as needed basis", as well as an emergency response system, housekeeping services and transportation services. Id. at 9-10. Should more intensive care be needed, the developer continued, Northwood would have a "preferred provider" arrangement with New Horizons in Marlborough for assisted living and Alzheimer's care, and with Wingate in Sudbury for skilled nursing care. Id. at 10.
These commitments did not fully satisfy the Selectmen on what the bylaw required. Selectwoman Clark was concerned that "there was no one person, such as a manager or director, to look to for responsibility." Id. When the developer responded that there would initially be a "management component" for that task, with that function transferred eventually to the condominium association, Selectwoman Clark cautioned that it would be "difficult to enforce the care component if it [was] left entirely up to the association of owners." Id. When questioned about whether care services would include the provision of meals, the developer told the Selectmen "that the plan is to leave the matter of meal service to the discretion of the residents [but] if residents requested meal service their request would be honored …even if only one resident chose to have meal service, which would be on a catered basis." Id.
In addition to discussing the characteristics of a residential care facility, the Selectmen also highlighted the need to assure that the services required would not be rolled back in the future. Selectmen Drobinski "was concerned with the facility revoking its care provisions in the future and asked Mr. Conant [the developer] to what extent those services could be required in perpetuity." 1997 Site Plan Decision at 13. Mr. Conant responded by stating that if the condominium association ever voted to rescind its care services, such a vote would violate the restrictions in the Master Deed and the zoning bylaw, and "the Town could void occupancy of the facility." Id. Mr. Drobinski was "disturbed by this response" and needed to be comfortable that the care services would be "locked-in." Id.
A final hearing took place on November 10, 1997, after which the 1997 Site Plan Decision was issued. [Note 15] No appeal was taken from that decision, nor was any argument raised that it went beyond the requirements of the bylaw. In relevant part, the conditions imposed are as follows:
Condition 22A: The following language shall be inserted in the Condominium Master Deed and the First Unit Deed:
Limitation of Residency. Northwood at Sudbury is a housing community limited to occupancy by seniors fifty-five (55) years of age and older (a "Qualified Person"), their spouses (including the surviving spouse of a deceased Qualified Person), and a relative by blood or marriage of a Qualified Person or of such spouse, provided that such relative must be fifty-five (55) years of age or older (a "Qualified Relative"). A Unit Owner shall not occupy or use his/her Unit or permit the same or any part thereof to be occupied or used for any purpose other than as a private dwelling for Qualified Persons, for the spouse of a Qualified Person, or for a Qualified Relative, it being understood and agreed that Northwood at Sudbury is to be used solely for senior housing. In no event shall…anyone under the age of fifty-five (55) years of age (other than the spouse of a Qualified Person) occupy a Unit. [Remaining text omitted]
Condition 22B. The following language shall be inserted in the Condominium Master Deed:
Residential Care Facility. Northwood at Sudbury is a residential care facility and shall provide a continuum of home health services and residential care to any Qualified Resident to enable such a resident to remain in his or her Unit for as long as possible without having to move to another facility in order to obtain a required level of care.
A continuum of residential care services will be provided by contract with recognized care providers, which will be designated as preferred providers, and which, by contract commitment, will be required to provide on an as-needed and as-requested basis, to Qualified Residents:
A) home health services for independent Qualified Residents,
B) skilled services for Qualified Residents requiring temporary respite care, and
C) specialized on-going services to the more medically fragile Qualified Residents.
D) provide for in-house Health Care Coordinator
To this end, Northwood at Sudbury shall at all times provide to Qualified Residents the following:
A. As part of the Common Area and Maintenance Fees of the Condominium:
1) Each Unit in Northwood at Sudbury a) shall be equipped for installation of grab bars which shall be installed (and removed) on an as-needed and as-requested basis for a Qualified Resident and b) shall have doorway dimensions large enough to accommodate wheelchairs and walkers;
2) An activities building which will contain the following:
Exercise and Fitness Room
Greenhouse and Garden Area
Library and Lounge
Meeting and Craft Rooms
Nurses Offices and Wellness Clinic
3) An Emergency Response System installed and operating in each Unit in the Condominium together with a 24 hour a day, 7 days a week monitoring of the Emergency Response System;
4) Local transportation of Qualified Residents and their Guests for shopping, for doctor's appointments, and for attendance at social, charitable, and religious gatherings; and
5) Weekly housekeeping services.
B. As an addition to and not included in the Common Area Maintenance Fees of the Condominium:
1) An arrangement with a preferred, independent living, health-care provider (initially expected to be Parmenter Health Services, Inc.) having a contract commitment to staff delivery, on site and on an as-needed and as-requested basis, to Qualified Residents, of a) independent living services (such as, but not limited to, fitness programs, wellness clinics, and homemaker services), b) assisted living services (such as, but not limited to, personal care attendants, companion service, and meal preparation), and c) skilled services (such as, but not limited to, nursing, physical, therapy, and home health aid services), all of such services to be contracted and paid for directly by the Qualified Resident receiving such service.
2) An arrangement with a preferred, assisted living, health-care provider (initially expected to be New Horizons at Madonna Hall, Marlborough), having a contract commitment to accept, on an as-needed and as-requested basis, Qualified Residents for off site assisted living services and Alzheimer's care, and through such provider's preferred provider (initially expected to be Wingate at Sudbury) or by separate contract with another provider, a contract commitment to accept, on an as-needed and as- requested basis, Qualified Residents for off site skilled nursing services, all of such services to be contracted and paid for directly by the Qualified Resident receiving such service.
Amendment. The provisions of this section shall not be amended or revoked unless any amendment or renovation has been approved in a writing executed by the majority of the Board of Selectmen of the Town of Sudbury [or,] without any such approval by the Town of Sudbury, these provisions may be amended by the Unit Owners, as otherwise provided herein, to mandate that Northwood at Sudbury provide additional facilities, services or arrangements to increase the number of services and facilities provided as a residential care facility or to arrange to have such existing or expanded services performed or provided for directly by the Condominium rather than by contract with preferred providers.
1997 Site Plan Decision at 18-19 (emphasis added).
As previously noted, no appeal was taken from this decision and these provisions were inserted into Northwood's Master Deed at Section 6(B)1-3.
During the construction of the first residential building, the Conant-Welch Group went into bankruptcy. Northwood Properties LLC then acquired the development rights for phasing- in the remaining units. The Bournes purchased their unit from Northwood Properties in 2003.
When the Bournes moved into their unit, Northwood was still a work in progress. Only two of the five planned residential buildings had been finished. Both of these buildings, as was planned for all five, were four story towers with twelve residential units apiece and underground parking. The central activities building (the "clubhouse") had also been built, [Note 16] with a gazebo at one end, an enclosed, heated swimming pool with lockers at the other, a lounge area with fireplace and television, an exercise room, an arts and crafts room, game tables, a library, a fully- equipped kitchen, and two unoccupied offices, one of them intended for the on-site administrator, and the other for visiting nurses, therapists, and their associated medical equipment. That, however, was it. There was no convenience store, and none of the skilled services listed in the site plan conditions and incorporated into the Master Deed were in place. There was no on-site staff, no meal service, no coordination of medical appointments or visiting nurses, no transportation service for such appointments, no housekeeping service, no wellness clinic, no physical therapy, and no "preferred provider" contracts with third-parties for assisted living, alzheimer's, or nursing home care. The Bournes reasonably expected that these would all be added as Northwood increased its residential capacity from the then-existing 24 units to the 66 intended, and were not told otherwise. None, however, has ever been provided.
Northwood Properties ran into its own financial difficulties [Note 17] and also went into bankruptcy. An auction was held for its assets, including the development rights for the remaining units. Castagna Construction was the successful bidder. The site plan conditions were on record, and Castagna thus acquired the development rights with full knowledge they were subject to those conditions.
Instead of proceeding, Castagna sought to have the mandatory conditions eliminated. It began by contacting the condominium trustees to enlist their help in persuading the unit owners to vote for an amendment to the Master Deed — a necessary first step. The advantage to Castagna from the removal of the conditions is obvious — a wider age-range means more potential customers, and the elimination of facilities and services eliminates their cost. Less obvious is any advantage for a senior-aged resident (and the disadvantages are many, see discussion below), except for this: no one wants to live in a perpetually unfinished project, and Castagna argued that, if the conditions remained in place, the development would stay unfinished. [Note 18], [Note 19] Castagna's talks with the trustees took place without many residents' knowledge, and the residents were given only a week's notice before the January 20, 2010 vote on the Master Deed amendments. [Note 20] There were two separate ballots. The first, entitled "Removal of Mandato[r]y Requirements Residential Care Facility," proposed to"delet[e] all mandatory care and service requirements for Residential Care Facility, permitting Northwood at Sudbury Condominium Trust, through its Board of Trustees, to provide one or more such care and service needs on a discretionary basis, as the Board of Trustees deems appropriate from time to time in accordance with the overall management responsibility of the Condominium." The second, entitled "Modification of Age-Restriction," proposed to remove the requirement that all units be occupied by at least one person age fifty-five or older, and replace it with an 80% requirement. [Note 21] A sufficient number of unit owners voted to approve both amendments. [Note 22]
Following those votes, Castagna petitioned the Board of Selectmen for identical modifications to the Northwood site plan. In addition, Castagna requested modifications that reduced the total number of units to be built from 66 to 43, and proposed that those remaining be constructed in a townhouse style rather than the towers previously approved. Castagna also proposed to remove the existing indoor swimming pool and gazebo to provide space for yet another townhouse, containing four units. See Letter from Attorney Gary M. Markoff to William J. Keller, Chairman of the Board of Selectmen (Feb. 12, 2010). [Note 23]
Against the advice of the town building inspector, [Note 24] the Selectmen approved the petition and eliminated conditions 22A and 22B as they existed in the 1997 site plan decision, replacing them with the following:
Condition 22A is hereby amended by striking said section in its entirety and replacing said section with the following: "In order to comply with the term Residential Care Facility, as currently defined in the Zoning Bylaw, all units at Northwood at Sudbury Condominium are intended and operated solely for occupancy by persons fifty-five (55) years of age or older, in accordance with the Federal Fair Housing Act 42 USC Section 3601…which provides that at least eighty percent (80%) of the occupied units must be occupied by at least one (1) person fifty-five (55) years of age or older ("Qualified Person"). [Remaining text omitted]
Condition 22B is hereby amended by striking said section in its entirety and replacing said section with the following: "Northwood at Sudbury Condominium Trust shall provide care services (a.k.a. "care arrangements") to unit owners in order to comply with the term, Residential Care Facility, as currently defined in the Zoning Bylaw. Such care services and/or arrangements may include but shall not be limited to, coordination of visiting nurse services, physical therapy services, transportation services, food services, recreational services, and educational services. Care services and/or arrangements shall be determined by the Condominium Trust in accordance with this permit condition and the terms of the current Zoning Bylaw, as the Condominium Trust deems appropriate and advisable. [Remaining text omitted]
2010 Site Plan Modification Decision, Sudbury Board of Selectmen at 3 (Mar. 25, 2010). The same language appears in the Amended Master Deed, replacing the original language concerning the age restriction and care services in Section 6(B)1-4.
The Bournes appealed the modified site plan decision to the Zoning Board on May 30, 2010, and a public hearing was held on June 7, 2010. Castagna argued that the modifications were financially necessary. Based on a finding that the initial conditions were now "onerous or outdated," and that the language "in order to comply with the term, 'Residential Care Facility', as currently defined in the Zoning Bylaw" was "sufficient…to ensure that the care needs of the residents would be met within the context of the Zoning Bylaw and the original Site Plan," the ZBA upheld the site plan modification. See Notice of Decision, Zoning Bd. of Appeals (Jul. 2, 2010). The Bournes filed their appeal on July 21, 2010, which became Case No. 10 MISC. 434334 (KCL) in this court. After the Bournes filed their appeal of the ZBA's decision, Castagna defaulted on its agreement to purchase the Northwood development rights and, on September 7, 2010, those rights were assigned to First Colony Northwood LLC, the second highest bidder at the bankruptcy auction. First Colony was then substituted for Castagna as a defendant in the court case.
In October 2011, First Colony filed a new application for site plan modification with the Board of Selectmen, seeking to change certain design elements of the prior Castagna site plan. These design changes included alterations to building elevations and interior floor plan layouts and the re-location of two buildings to a different area of the lot. By a 1-1 vote [Note 25] the Selectmen denied the application, and their decision was filed with the town clerk on January 5, 2012. First Colony did not appeal this decision and instead, on February 28, 2011, filed an application for a building permit with the building inspector based on the rejected plans. The building inspector denied the building permit request on March 8, 2012.
First Colony then appealed the denial of the building permit to the ZBA on April 5, 2012. The Bournes opposed that appeal. The Zoning Board held a public hearing on May 21, 2012 and reversed the denial of the building permit, filing its decision with the town clerk on May 25, 2012. As the reason for its reversal, the ZBA wrote,
The Selectmen's failure to approve the appellant's request for site plan modification was based on Vice Chairman Haarde's disagreement with a 2010 decision allowing modification of the age restriction condition in the original site plan decision. The Board of Appeals found that the age restriction issue was not properly before the Board of Selectmen in 2011 and should not have been considered in its review of the appellant's request for site plan modification. Therefore, the Board of Appeals found that the Selectmen's failure to approve the appellant's request was inappropriate [and] the requested amendments to the 2010 Site Plan Modification Decision contain alterations to the plans that are minor in nature.
Minutes of the Public Hearing of the Sudbury Board of Appeals at 3 (May 21, 2012). [Note 26] The Bournes' appeal of this decision is the subject of 12 MISC. 465978 (KCL).
Since the Bournes arrived at Northwood in 2003, there has been no in-house Health Care Coordinator, nor even any such co-ordination off-site. There has been no provision of physical therapy services, transportation services, housekeeping services, or food service. The "recreational services" provided consist solely of a few pieces of exercise equipment placed in a room in the activities building in 2003. The previously-existing indoor swimming pool has been drained and padlocked. There has never been a wellness clinic, except for a heart pressure monitor which was recently put in a room in the activities building.
Additional facts are set forth in the Discussion section below.
The cases before me are G.L. c. 40A, § 17 appeals with their outcome dependent upon the proper interpretation of the Sudbury Zoning Bylaw; specifically, what age restrictions must be maintained, and what facilities and services must be provided, for a development to qualify as a "residential care facility" as defined in Bylaw §7000. The standard of review is the familiar one. The trial judge makes his own findings of facts and need not give weight to any made by the board. Shirley Wayside Ltd. Partnership v. Bd. of Appeals of Shirley, 461 Mass. 469 , 474 (2012). The judge then determines the content and meaning of the applicable statutes and by- laws and decides whether the board has chosen from those sources the proper criteria and standards to use in addressing the zoning relief requested. Id. While some measure of deference is given to a local board's reasonable interpretation of its own zoning bylaw, an incorrect interpretation is not entitled to deference. Id. at 475, Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003). If the board has materially misinterpreted or misapplied the bylaw, its decision must be vacated. See Shirley Wayside, supra.
Bylaw §7000 defines a "residential care facility" as one which provides "assisted living and/or independent living arrangements to persons 55 years or older in one or more buildings." A bylaw's meaning is determined by the ordinary principles of statutory construction. Shirley Wayside Ltd. Partnership, 461 Mass. at 477. The court looks to the statutory language as the principal source of insight into legislative intent, and when the meaning of the language is plain and unambiguous, the statute is enforced according to its plain wording unless a literal construction would yield an absurd or unworkable result." Id. All of its provisions must be given effect so that no part will be inoperative or superfluous. Id.
The parties agree that Northwood was neither intended nor approved as an assisted living development. As noted above, it must thus provide (1) independent living arrangements, (2) to persons 55 or older, (3) in one or more buildings.
I begin with the age requirement. By the plain language of the bylaw, Northwood's occupancy must be restricted to persons 55 or older. Other regulatory schemes may permit a lesser percentage, but they do so by explicit direction. [Note 27] No such language appears here. However "onerous" a 100% requirement might be, [Note 28] it is not "absurd", [Note 29] it is not "unworkable", [Note 30] and it thus governs. [Note 31] See Shirley Wayside Ltd. Partnership, 461 Mass. at 477. It is what town meeting intended. [Note 32] It is what the plain language of the bylaw says. It is what the 1997 Selectmen's decision construed it to say. [Note 33] It is what the town's building inspector told the Selectmen [Note 34] and the ZBA [Note 35] it said. And it is what the Selectmen again construed it to say after they realized the mistake they made in their 2010 Site Plan Modification Decision. [Note 36] Only the ZBA disagreed, and it is incorrect.
The plain language of the bylaw also makes clear that the development must have dedicated spaces, on-site, that distinguish it from ordinary condominiums (it is a residential care facility), and that the care services required by the bylaw to enable true "independent living" by its elderly residents must be provided, at least in part, in one or more buildings in that facility. As the Selectmen aptly noted at their 1997 hearings on the original site plan application, "the mere presence of a listing of services in the lobby" would not suffice.
The remaining questions presented are thus two: what facilities and services are required for "independent living arrangements," and how should they be required? Must there be a mandatory baseline or, as the defendants argue, is it permissible to leave them to the discretion of the condominium board of trustees, subject only to zoning enforcement actions, without baseline guidance to the condominium residents or building inspector on what they should be? [Note 37] The defendants argue for the latter, contending that the Bournes' challenge to the ZBA decisions is premature and unripe. Let the trustees adopt whatever they choose, the defendants say, and then review what's been adopted.
It is superficially seductive to do what the defendants ask — avoid a present determination of what the bylaw requires, leave it up to the condominium trustees to decide what will be provided, and act only in response to enforcement requests challenging the trustees' decisions. That approach, however, has at least three flaws, each of them fatal.
First, it is impermissible as a matter of law. Zoning requirements must be clear. "[A]n ordinance or bylaw imposing such restrictions on the use of property ought not to stand when it is so vague and ambiguous that its meaning can only be guessed at. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law, and this is no less true of a municipal ordinance or regulation." O'Connell v. Brockton Bd. of Appeals, 344 Mass. 208 , 212 (1962) (internal citations and quotations omitted). The Selectmen gave clear, baseline requirements in their 2010 Decision. The ZBA has now eliminated that baseline, leaving nothing in its place. At trial, the ZBA did not offer a single witness to testify to what a reasonable interpretation of the care requirements in the bylaw might be, thus creating uncertainty and ambiguity where none existed before. This violates the precepts of zoning and, for that reason alone, its decision must be vacated.
Second, it is unworkable. The former building inspector, James Kelly, testified that he considered the baseline requirements of the bylaw to be those imposed by the Selectmen's 2010 site plan approval decision. The ZBA has now brushed those aside without setting out any new, clear guidelines. What is Mr. Kelly's successor to do when reviewing the trustees' now- discretionary judgments, which almost certainly will change from time to time? How is a condominium resident to judge when an enforcement action — time consuming and expensive— should be sought, and how successful it might be? [Note 38] Reviewing courts will be condemned to a potentially non-ending series of appeals. Again, this contradicts the foundations of zoning.
Third, it will likely lead to a steady erosion of care, with the strong possibility of its ending over time. With nothing certain, those now in residence and most in need of care will likely sell their units. Those like them, who might otherwise have been drawn to the development, will avoid it and buy elsewhere. Those remaining in Northwood will steadily skew healthier and younger, and thus have little incentive to vote for continuations of facilities or services. The building inspector, with many demands on his time, cannot be expected to police bylaw compliance on his own, and the trustees' annual reports (assuming they make them) are not a trustworthy substitute since the zoning board will not schedule hearing time in the absence of a concrete dispute. Thus, over time, the development will become less and less zoning compliant, more and more like an ordinary condominium, and the purpose of its zoning will have been defeated.
In sum, the defendants' arguments that these appeals should be dismissed because the disputes they raise are not "ripe" must be rejected. It was error for the ZBA to eliminate all mandatory care requirements and leave those decisions in the discretion of the condominium trustees.
So what baseline facilities and care does the bylaw require? The defendants gave no guidance at trial. Mr. Kelly, the former building inspector, relied on the Selectmen's 2010 site plan conditions, now eliminated by the ZBA. The ZBA decision suggested that (1) mere "coordination" of services might suffice (without explaining how such coordination would take place, or requiring any aspect of that coordination, or any of the services themselves, to be on- site), and (2) the non-exclusive designation of one room in the entire complex as available for visiting nurses, therapists and other medical personnel to examine and consult with unit owners, might be the only on-site space necessary for the development to qualify as a Residential Care Facility. But these are clearly insufficient. A "residential care facility" is not created by making a single room available for nurse examinations from time to time, and an off-site call center, with no-one on site to assist those callers needing assistance, does not amount to "independent living arrangements…in one or more buildings" by any reasonable definition. What, then, does?
The key lies in evaluating what elderly persons need to remain "independent" for as long as possible, short of assisted living or nursing home care. They often do not drive, are more likely to need on-site social, interactive space because of that lack of mobility, and may greatly need someone on-site to help them obtain and coordinate doctors' visits, grocery and clothing purchases, housekeeping services, meals, trips to stores and entertainment, and the like. The conditions in the Selectmen's 2010 site plan approval are one possible solution, but as even that decision recognized when it explicitly provided for later amendment, may be more than reasonably necessary. Another was outlined by the Bournes' expert, Christopher Wise — the CEO of Wise Living, which owns and operates independent living facilities in Massachusetts — who testified regarding the minimum level of service required of an independent living facility.
According to Mr. Wise, at the very minimum, the characteristics of an independent living facility include a 24-hour staff, meals available to residents on request, and common areas which include dining, exercise, and activities rooms. As Mr. Wise explained, although amended Condition 22B specifies that skilled services would be available on an as-needed basis rather than provided by a 24-hour on-site staff, it does not require an in-house health care coordinator, which, in his opinion, is critical to Northwood being a residential care facility. As he explained, "[w]ithout the coordinator, none of it works because the individual has a hard time, if calamity has struck, to go and ferret things out." In Mr. Wise's independent living facilities, for example, the coordinator (whom he calls the "resident assistant"), helps residents with everyday tasks, such as arranging transportation to medical appointments. According to Mr. Wise, common areas, such as a library and lounge, are necessary to allow residents to socialize and interact with each other. Mr. Wise also testified that garden areas serve an important function since they provide an activity for residents to engage in, and also offer benefits to residents with Alzheimer's disease who, with their spouse's support, need not yet go to full-time Alzheimer's care. [Note 39] Likewise, in his view, arrangements, by contract or otherwise, with outside healthcare providers are important features of independent living facilities. As Mr. Wise acknowledged, there is no state regulation or statute that defines what constitutes an independent living facility and Northwood need not perfectly mirror one of Mr. Wise's developments. However, his testimony demonstrates that the conditions that were put in place by the Selectmen in their 1997 site plan decision closely reflect an industry understanding of what care services must be offered to residents in an independent living facility.
It is not appropriate for me to rule on the specifics of the bylaw's requirements before giving the ZBA the opportunity to do so itself. I thus VACATE and REMAND the ZBA's decision in Case No. 10 MISC. 434334 (KCL) to require 100% over-55 occupancy (with the exception of spouses) and to set forth the baseline on-site facility and care requirements necessary for Northwood to be a "residential care facility" within the meaning of the bylaw, retaining jurisdiction of the case for purposes of post-remand review
In Case No. 12 MISC. 465978 (KCL), the Bournes contend that the ZBA's decision directing the building inspector to issue a building permit to First Colony to implement certain design changes must be annulled because, pursuant to the Sudbury bylaw, First Colony did not timely appeal the Selectmen's site plan decision to the Zoning Board within 30 days and instead took an appeal only after being denied a building permit. Section 6390A of the zoning bylaw provides, "[a]n appeal from a decision of the Board of Selectmen relating to the substantive provisions of the Zoning Bylaw pursuant to Section 6300 shall be taken in accordance with the provisions of G.L. c. 40A, § 8." Chapter 40A, § 8 provides in relevant part, "[a]n appeal to the permit granting authority…may be taken…by any person including an officer or board of the city or town, or of an abutting city or town aggrieved by an order or decision of the inspector of buildings or other administrative official, in violation of any provisions of this chapter or any ordinance or by-law adopted thereunder."
In response to First Colony's motion to dismiss Case No. 10 MISC. 434334 (KCL), I ruled that the Bournes had properly appealed the Selectmen's 2010 modified site plan decision to the ZBA without first waiting for an action by the building inspector on a building permit application. See Mem. & Order on Defendant Northwood at Sudbury Condominium Trust's Motion to Dismiss at 6 (Apr. 12, 2012). There, I relied on the recently decided Wildstar Farm LLC v. Planning Bd. of Westwood, 2012 WL 468226 (Mass. App. Ct. 2012) (Rule 1:28 disposition, unpublished), which held that a town may adopt a bylaw providing for immediate appeal of a site plan decision even if it is the "non-discretionary" type that is typically not appealable until the issuance or denial of a building permit. Mem. & Order at 5. As previously noted, Sudbury has such a bylaw. Id. at 5-6 (discussing Sudbury Zoning Bylaw).
At the time First Colony filed its application with the building inspector on February 28, 2012 following the site plan decision, it did not have the benefit of this court's ruling in the earlier case and the Wildstar opinion had only recently been issued on February 15, 2012. First Colony instead relied on other, pre-Wildstar case law directing proponents who have been denied site plan approval in certain circumstances to first apply for a building permit before seeking further review by a zoning board of appeals. See, e.g., Cumberland Farms, Inc. v. Planning Bd. of Bourne, 67 Mass. App. Ct. 67 , 69 (2006).
In these circumstances, it would be unjust to apply my ruling retrospectively. See Eaton v. Federal Nat'l Mortgage Ass'n., 462 Mass. 569 , 589 (2012) ("In the property law context, we generally apply our decisions prospectively out of concern for litigants and others who have relied on existing precedents.") (internal citations and quotations omitted). Aside from the procedural argument, the Bournes' Complaint in 12 MISC. 465978 does not challenge any of the design elements of First Colony's site plan modification, but rather contends that the Zoning Board erred in allowing the modified plan because it "did not reestablish the age restriction, nor did it restore the residential care component." See Complaint at ¶ 35. Those issues have been addressed above in the context of the earlier action, 10 MISC. 434334. However, to give the board the opportunity to revisit those design changes, I VACATE AND REMAND Case No. 12 MISC. 465978 (KCL), for reconsideration in light of the services and on-site facilities directed by the new board decisions in Case No. 10 MISC. 434334, which may or may not affect the particulars of the modified plans the ZBA decision approved, again retaining jurisdiction for purposes of post-remand review.
Judgment shall enter accordingly.
[Note 1] For consistency and ease of reference, I date each board decision by the date of its filing with the town clerk.
[Note 2] An exception was made for younger spouses.
[Note 3] The condominium was approved as a "phased" development, and the original developer went bankrupt after construction of the first two phases.
[Note 4] Castagna also requested that the number of units be reduced from the originally-planned 66 to 43, with the remainder of the 43 constructed in townhouse-style buildings. This Bournes have not appealed this aspect of the request, which was approved by the Selectmen.
[Note 5] Site Plan Modification Notice of Decision, Sudbury Bd. of Selectmen, Northwood at Sudbury (Mar. 25, 2010).
[Note 6] Notice of Decision, Sudbury Zoning Bd. of Appeals (Jul. 2, 2010).
[Note 7] The issue, put briefly, is this. Site plan review is not explicitly recognized in G. L. c. 40A, but has been found to be a permissible regulatory tool for "controlling the aesthetics and environmental impacts of land use." Osberg v. Planning Bd. of Sturbridge, 44 Mass. App. Ct. 56 , 57 (1997). Because of this gap in the statute, there is no explicit statutory mechanism for appeal of site plan review decisions and, in that absence, case law has sought to provide guidance. In some instances, a decision is immediately appealable to court. See e.g. Quincy v. Planning Bd. of Tewksbury, 39 Mass. App. Ct. 17 , 21-22 (1995). In others, it must await the issuance of a building permit, and the appeal is from that permit. See, e.g., DuFault v. Millenium Power Partners LP, 49 Mass. App. Ct. 137 , 139 (2000). The distinction tends to turn on whether the site plan decision has a discretionary element. If the reviewing board has discretion to refuse approval, the decision is considered in the nature of a special permit and immediately appealable pursuant to c. 40A, §17. See Quincy. If there is no discretion — if the use is "as of right" and the most the board can do is impose reasonable conditions — review must await the building permit. See DuFault. It is not always clear, however, in which category a particular site plan review process falls, and an error can be unforgiving since untimely appeals are dismissed. See Connors v. Annino, 460 Mass. 790 (2011). The result has been the filing of immediate appeals in any situation at all arguable, and the waste of both private and municipal resources when a court finds the appeal premature. There are also advantages, to both the parties and the town, to knowing whether a site plan approval will survive scrutiny before undergoing the additional effort and expense associated with a building permit.
The Sudbury site plan review bylaw is a perfect illustration of the dilemma. It provides that "Site Plan approval shall be granted upon determination by the Board of Selectmen that the plan meets the following objectives" and that "[t]he Board of Selectmen may impose reasonable conditions at the expense of the applicant, including performance guarantees, to promote these objectives." Bylaw, §6380. The use of the word "shall" suggests a DuFault-type situation, where approval must be granted subject only to reasonable conditions. But the follow-up phrase, "upon determination by the Board of Selectmen that the plan meets the following objectives," suggests that the Selectmen have Quincy-type discretion. This would be consistent with the reviewing body itself — the Selectmen (an elected, policy-making body) rather than the Planning Board — and the further review by the zoning board.
To moot any possible ambiguity, a number of municipalities, including Sudbury, have adopted bylaws providing for immediate appeal of site plan decisions in either situation. Wildstar upheld the validity of such bylaws. My ruling followed Wildstar. Mem. & Order on Defendant Northwood at Sudbury Condominium Trust's Motion to Dismiss (Apr. 12, 2012).
[Note 8] See Letter from Town Manager to Mark Kablack, Esq. (Jan. 5, 2012).
[Note 9] See Minutes of the Public Hearing, Sudbury Zoning Bd. of Appeals at 2 (May 21, 2012) (reflecting the Selectmen's rationale). As previously noted , the Selectmen's 2010 decision, affirmed by the ZBA, had approved a reduction in "over-55" occupancy from 100% to 80%. The Selectmen apparently thought differently in 2011 and based their denial on that ground. Id.
[Note 10] He too is of the opinion that the bylaw requires 100% "over-55" occupancy. See Memorandum to the town's Board of Selectmen from James F. Kelly, Inspector of Buildings (Mar. 8, 2010).
[Note 11] Mr. Kelly was the town's building inspector at the time of the board decisions on appeal.
[Note 12] No argument has been made that it would otherwise qualify for residential occupation, then or now.
[Note 13] Ms. Clark is referred to throughout the 1997 Site Plan Decision as "Selectman Clark."
[Note 14] The plaintiffs do not dispute this.
[Note 15] The applicant agreed to all relevant time extensions.
[Note 16] Under the approved site plan, the five residential towers were to surround the central activities building.
[Note 17] The record does not indicate if these were related to the Northwood development or independent of it.
[Note 18] As the ZBA's June 7, 2010 meeting minutes reflect, Castagna's attorney, Mark Klaback, stated that "the developers set out to finish the project as it was approved at bankruptcy, but the plan was just too costly." ZBA minutes at 4. No evidence was offered that Castagna would have lost money if the mandatory conditions remained in place (presumably something it evaluated when it bid). Rather, so far as I can discern, "too costly" meant that Castagna's financial return from completing the development with those conditions was less than what it now wanted.
[Note 19] Castagna's other argument was that removal of the mandatory conditions, making everything discretionary with the condominium trustees, would add "flexibility." Left unsaid was the likelihood of significant dilution, particularly with the proposed reduction in the number of "over 55" occupants. Younger occupants would have no need of more senior-oriented facilities and services and would not want to pay for them in their condominium assessments, thus pressuring the trustees for their elimination. This was exactly the situation predicted by Selectwoman Clark in the 1997 hearings, and why the facilities and services were made mandatory. See discussion above.
[Note 20] See ZBA minutes at 4 (Jun. 7, 2010).
[Note 21] As noted below, the 80% requirement was based on the Federal Fair Housing Act, 42 U.S.C. §§3601 et seq. which addresses "housing for older persons", not residential care facilities of any kind. See 42 U.S.C. §§3607(b)(2)(C)(i). There is nothing in the record to indicate any reference at Town Meeting to that Act, much less any intent to be guided by its provisions or interpretations, for any purpose.
[Note 22] The recorded Amended Master Deed includes the ballots of each unit owner indicating how the owner voted on the amendments. It shows that Mrs. Bourne voted for both. Mr. Bourne, however, did not vote for either and, with others similarly opposed, appealed these changes to the ZBA after the Board of Selectmen allowed them as modifications to the original Northwood site plan decision. Mrs. Bourne later joined with Mr. Bourne as a plaintiff in these cases.
Mrs. Bourne did not testify at trial, so her reasons for changing her mind after her vote were not explained. In any event, she was not alone in this. As previously noted and discussed again below, the Selectmen themselves changed their position after initially approving the site plan modifications, only to be reversed by the ZBA.
[Note 23] Attorney Markoff's letter indicates that the changes to the location and design of the structures at Northwood only had to be approved by the Board of Selectmen and the building inspector. So far as the record shows, the unit owners never took a vote on those site plan modifications.
[Note 24] By written memorandum, the building inspector advised the board, "[i]f the age restriction is changed, the project will not conform to the bylaw and a variance will be required from the Zoning Board of Appeals," and "[i]f the 'Residential Care Facility', as defined in previous decisions, is removed or eliminated, the development will not meet the requirements of a care facility and a variance will be required for the proposed development." Memorandum to the Board of Selectmen from James F. Kelly, Inspector of Buildings (Mar. 8, 2010).
[Note 25] The other Selectman present at the meeting, John Drobinski, recused himself from the vote.
[Note 26] The minutes are incorporated into the ZBA's Notice of Decision (May 25, 2012).
[Note 27] Compare 42 U.S.C. §3607(b)(2)(C)(i), the statute referenced in the board decisions on appeal, whose 80% figure is expressly stated. Also, as previously noted, §3607 addresses "housing for older persons", not residential care facilities.
Tellingly, the only section of the town's zoning bylaw referencing 42 U.S.C. §3607(b)(2)(c) — the bylaw provisions concerning "senior residential communities" — explicitly states in its age qualification that "one hundred percent (100%) of the dwelling units in a Senior Residential Community shall each be owned and occupied by at least one person fifty-five (55) years of age or older per dwelling unit" (compliance with §3607 is only in all other respects) and, "in the event of the death of the qualifying owner/occupant(s) of a unit, or foreclosure or other involuntary transfer of a unit in an SRC, a two-year exemption shall be allowed for the transfer of the unit to another eligible household." Bylaw §5332 (emphasis added).
[Note 28] Why it would be "onerous" or what, exactly, the ZBA meant when it used that word, was not explained. There was no evidence that the development had had difficulty finding "55 and over" purchasers for its units in the past, and no evidence that it would have difficulty now or in the future.
[Note 29] Quite the contrary, it makes perfect sense. As previously noted, any dilution of the over-55 population creates internal conflicts between younger and older residents and dilutes internal policing of the care requirements. An under-55 population will also likely have children, which materially changes the development's dynamics. See trial testimony of Sidney Bourne.
[Note 30] To the contrary, it eliminates inconsistency and potential confusion and unfairness on how units may be marketed and sold. With a 100% requirement, the same rules (sales to only over-55's) apply at all times to everyone. They are thus not dependent on whether, at the moment of any particular sale, any part of the 20% is unused (making that unit, at that moment, available for sale to under-55's). If only certain designated units will be exempt from the "55 and over" restriction, it avoids conflict over which those units will be.
[Note 31] I concur with the exception for under-55 spouses, which is eminently reasonable and must have been within the contemplation of town meeting. None of the parties disagrees.
[Note 32] See statement of the town's building inspector to the ZBA as reflected in the minutes of the June 7, 2010 hearing.
[Note 33] See 1997 Site Plan decision (Nov. 14, 1997).
[Note 34] See n. 24, supra.
[Note 35] Minutes of Public Hearing, Sudbury ZBA at 4 (Jun. 7, 2010)
[Note 36] See Minutes of the Public Hearing of the Sudbury Board of Appeals at 3 (May 21, 2012).
[Note 37] The condominium trustees propose taking periodic surveys of their residents and then submitting an annual report to the town. Neither, however, was required by the ZBA decisions, nor is there any "review" mechanism other than enforcement requests.
[Note 38] This might lead to either too few enforcement actions, or too many.
[Note 39] According to Mr. Wise, garden areas are particularly important for residents with Alzheimer's because "it's the last piece that someone [with Alzheimer's] can touch."


Our Telekom strongly condemns the vandalism of the public phone at the Rove Bus stop and also other locations in and around Honiara.
Our Telekom in partnership with Westpac Bank have funded the Rove Bus Stop with SIEA who provided free power for the installation of a public phone & lighting since 2005 as an initiative to support the Honiara Community for people to shelter and make calls while waiting for public bus transport.
However, the public phone has been vandalized. The Telekom and Westpac signboards which were also put up at that bus stop were damaged and defaced with paint and betelnut stains.
Our Telekom says that such actions shows complete disrespect for public facility that serve the communication needs of the public within the Rove area.
Vandalism of public phones is a setback to the efforts the company is taking to ensure that the majority of the people both in urban and rural areas can have access to telecommunication services. Moreover, these public phones are very expensive to buy and maintain.
Our Telekom urges the general public to report to police anyone found vandalizing public phones installed nationwide and seek communities who have such facilities to look after them as these are proven useful for casual users.


text:
Hood By Air Fall/Winter 2015
A day or two before a fashion show, there's a thing called a "test." The designer, stylists, and hair and makeup artists gather—along with assistants and a few key models—to work out what exactly the beauty look will be day of. It's similar to the experience of being backstage, but calmer and a bit more creative. If the moments before a fashion show are exciting because of the freneticism of getting everyone ready, hair and makeup tests are exciting because just about anything is possible. Everything is still "work in progress." but in the best sense of the phrase.
This season's Hood By Air tests were on a Saturday afternoon in a temporary, 5th floor studio in the Lower East Side. Stylist Akeem Smith, makeup artist Inge Grognard (MAC), and hairstylist Amy Farid (Bumble and bumble)—along with their respective teams—had only just begun to reconcile a shared photo stream full of inspiration. References included images of men in jail, jheri curls, sculpted sideburns, and acupuncture needles. Then there were the plastic baby dolls attached to harnesses and the fake teeth inserts decorated with padlocks and braces from the actual collection. A little something for everyone.
'We briefed late last night about having the stocking over the face and then redrawing the face over the nylon." Grognard said. "I was still in Belgium, so there wasn't time to test it at home—plus I didn't have the stockings. You know, sometimes you work with a designer who has their concept set weeks in advance, and sometimes it's last minute like this." Once she arrived, Inge and Michelle Clark, a MAC senior artist, began drawing, removing, and redrawing designs over the stretched stockings in various MAC eyeliners and eyebrow pencils (they ended up going with the MAC Eye Pencil in Coffee). Skin was barely touched. Say what you will for wearing hosiery over your face, but it does wonders for obscuring blemishes. Some faces got angular, drawn on sideburns while others got a simpler contouring around the jaw and definition in the eyebrows. Occasionally, the stocking was ripped so grills (grillz?) could be worn.
Hair was similarly involved. Each model got his or her own treatment, stemming from a very molded wet look using Bumble and bumble Gel. Some got finger waves, some got strands plastered to their faces...all very graphic to be seen from under the stocking.
Before running out to buy supplies (mainly Q-tips) at Muji before it closed "It's New York! You'd think things would stay open later') Inge said, "We really know what we have to do tomorrow—and we also know the difficulties, which is very good." And sure enough, backstage at the show everything went seamlessly. Or as seamlessly as anything can go when you're juggling 32 models on a Sunday morning during New York Fashion Week.
Photographed by Tom Newton.

redpajama_set_name: RedPajamaCommonCrawl


text:
JC Architecture
H&M Logistic Office / JC Architecture
19:00 - 16 March, 2016
© Kevin Wu
Taipei, Taipei City, Taiwan
Lead Designers
Johnny Chiu, Maria Isabel Lima
Kevin Wu
Text description provided by the architects. Courtyard Link
As H&M fashion company launched their first store in Taiwan, the logistic office and warehouse were set among the mountains of Ruifung, on the outskirts of Taipei City. The reconfigured space introduces a new approach to logistic offices as opposed to the stereotypical warehouse workplace. The design embodies a casual, warm and playful environment that reflects the belief in each individual's ability to show initiative.
The biggest challenge was to create two separate workspaces, with one being secured for the finance department, though maintaining a connectivity and sense of togetherness between the spaces. Given the large column span and high ceilings of the site, juxtaposed with the surrounding landscape, we decided to explore the idea of openness vs. private. We created a space that promoted creativity, personalization and collaboration while playing a role between the interior and exterior.
Traditionally used for many purposes, including resting, cooking, working, and playing, a courtyard was designed as an extension of the workspace. It is also a shared area and cafe for other departments in the building. The open space with kitchen, garden and casual seating became the pivotal point where people come to meet, relax, work or enjoy a meal together. The courtyard is bright and open as an outdoor plaza. and surrounded by an wooden arcade and its multiple doorways link the workstations and courtyard together. The communal space evokes the sense of collectiveness as well as the playful and honest character of the company.
The workstations are placed in what we call the "cloister area," an L-shape hall enclosed by arches with one side facing the inner building and the other overlooking the courtyard. By creating the layout in a human-scale approach, with small groups and breathing spaces throughout, we provide the required privacy setting while maintaining a neutral hierarchy environment. Both departments have a consistent warm, textural feel, as belonging to one continuous environment.
Wood Glass
Projects Built Projects Selected Projects Interiors Architecture Offices Interiors TaipeiTaiwan
Cite: "H&M Logistic Office / JC Architecture" 16 Mar 2016. ArchDaily. Accessed . <https://www.archdaily.com/783883/h-and-m-logistic-office-jc-architecture/> ISSN 0719-8884
来看看大家都爱的 H&M 的台湾物流办公室是什么样子的 / JC Architecture


text:
NOBLE PROFESSION
A Kenyan teacher just won the $1 million Global Teacher Prize
The Varkey Foundation
Peter Tabichi wins the $1 million Varkey Foundation Global Teacher Prize.
Science of Learning
Science and technology are upending how we learn. We separate the science from the snake oil and look at how parents, teachers, and policymakers respond.
By Jenny Anderson
Senior reporter, Editor of How to be Human
Published March 24, 2019 This article is more than 2 years old.
Peter Tabichi, a Kenyan math and physics teacher, won the $1 million Varkey Foundation Global Teacher Prize at a star-studded event in Dubai Sunday (March 24).
Accompanied by his father, Tabichi said the prize showed that "teachers matter" and that "teaching is a noble profession."
Tabichi left his job at a private school to join the Keriko Secondary School (in Pwani Village, Nakuru, Kenya), where 95% of the students are poor and almost a third are orphans. Drug abuse, teen pregnancies, drop-outs, and suicide are common, and the school has one computer, poor internet access, and a student-teacher ratio of 58:1.
In spite of those circumstances, Tabichi's science students have won various national science competitions, and qualified to participate at the Intel International Science and Engineering Fair 2019 in the US. In 2017, only 16 out of the school's 59 students went on to college, while in 2018, 26 did.
Actor Hugh Jackman awarded the prize at the Atlantis in Dubai, performing music from The Greatest Showman and offering heartfelt tributes to each of the 10 finalists. Kenyan president Uhuru Kenyatta, in a video message, said Tabichi's story showed that Africa is "a young continent bursting with talent."
The teacher prize ceremony caps the Global Education and Skills Forum, a glitzy three-day conference considered the "Davos of education." Dozens of education ministers and leaders from around the world joined to discuss teaching, technology, and learning science. On Saturday night, a concert included performances by Rita Ora, Little Mix, and Liam Payne.
The prize was set up by the Varkey Foundation to shine a spotlight on teaching at a moment when there is a severe global teacher shortage and research shows that it will take poor countries up to 100 years to close the learning gap with richer ones. "By unearthing thousands of stories of heroes that have transformed young people's lives, the prize hopes to bring to life the exceptional work of millions of teachers all over the world," the foundation said.
The event is a massive celebration of teachers, who often work with little recognition and poor pay in severely resource-constrained environments. Tabichi is the fifth winner of the prize, which has also been won by an American, a Brit, a Palestinian, and a Canadian. Last year's winner was Andria Zafirakou, an art and textiles teacher at Alperton Community School in the UK whom Quartz recently interviewed.
"Africa's young people will no longer be held back by low expectations," Tabichi said. "Africa will produce scientists, engineers, entrepreneurs whose names will be one day famous in every corner of the world. And girls will be a huge part of this story."
The prize is paid over 10 years. Recipients are meant to have practices that can be scaled, are innovative, and impact the community beyond the classroom. It also awards practices that help children become global citizens, "providing them with a values-based education that equips them for a world where they will potentially live, work and socialise with people from many different nationalities, cultures and religions."
"If you don't fail, you don't learn, and if you don't learn, you can't change," Tabichi said.


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I am an Indian Student pursuing my engineering here and I want to study sports management in UK. So what universities offer this course what are the requirements for them?
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Can I transfer credits from an Australian uni to a UK uni?


Big news in the Florida election. Again.
Democrat Andrew Gillum has conceded. Again.
The intense race jetted forth more than a week after election day, and things have finally come to a halt — two days after the Thursday deadline for recount totals. That tally gained Mr. G only one net vote, bringing the margin to .41 percentage points.
Gillum initially conceded on Election Night, then withdrew the concession after absentee and provisional ballots swung the margin narrowly in his favor.
During his campaign, DeSantis got the Trump stamp of approval — the President appeared at Florida rallies in support of the House Freedom Caucus member, twice just in the week prior to the election.
The contest for governor was a dirty shame, with — brace yourself — Democrat Gillum calling Republican DeSantis a racist.
You may think to yourself, "Oh, no — what will happen to Florida, with a racist in office?" Rest assured, that's the worst of your problems: according to the Dems, the President of the United States is a racist (here). And all the Republican leaders (here). But don't let that get you really down — you're a racist, too (here and here).
The official election results aren't likely to be certified until Tuesday.
See 3 more pieces from me: the UK siding with religious freedom, Chuck Schumer & the b*tch flight attendant, and your contribution to American babyhood.


Our natural diffuser reeds offer a great way to refresh an old or new reed diffuser to continually release fragrance into the air for several months. Each set features 10 reeds to a bundle.
Our Madagascar Diffuser will whisk you away to this remote island with its intoxicating blend of White Orchid, Vanilla, Freesia, and Jasmine.


The team of Dumont, Haven, and Vitz made the long drive to Ajo, Ariz on Fri nite and tried to find Steve Smith the next morning. After waiting two hours for him we decided to leave for the roadhead. The correct route for Kino is not apparent from the map as the contours tend to be stacked atop one another. However they did look less awesome at the NE saddle. So for this point we headed and luckily found the route which we followed to the summit with little difficulty. Early Sun found us on the trail to Bull Pasture from which we hacked thru thorne and stickers of all varieties to the top of the south ridge of Ajo. Once gaining the ridge, we sprinted to the summit, being pushed on by the thought of that pleasant eight hour grind back to LA. Steve had had car trouble and so had climbed Ajo on Saturday, so said his note in the register. We came down via the brush-choked north fork of Estes Canyon. It took us almost as long to get off the peak as the ascent from the south. Both are wonderful peeks deserving DPS status, as they are in superb desert surroundings.
Route to Kino: The roadhead is at Bates Well, to the north of the peak, and reached by the Darby Well road running west from the highway south of Ajo town. Pavement ends at Darby Well but left fork is followed, for about l5 miles. Stay left at the one major fork some 7 or 8 miles out of Derby Well. Follow the canyon leading to the NE notch, passing a brush-choked area by means of a west wall, and go almost to the notch to a prominent ledge which runs south along the face. Turn here to the west, pass a waterfall by means of an arete, and then go north along a broad ledge to an easy, shallow chute which leads to the top of the north ridge.
Route to Ajo: Follow the trail to Bull Pasture Overlook, descend to the pasture and climb to the south ridge via any number of canyons which cut its west face. Follow the ridge north. An alternate route, less pleasant because of thick brush is the north fork of Estes Canyon to the saddle and then SE to the summit.


Lately I have been working on my owl sewing project.
Locally, my little owls were a hit, so I decided to make some more, this time for my new online shop on Etsy.
My kids love the smell of peppermint, so usually I add a drop or two to their's!


It earned medals. Lots of medals.
At its core, General Mills was a flour milling company. Many brands dotted our history, but Gold Medal flour remains the most well known.
In 1880, Washburn Crosby entered several grades of flour in the first International Millers' Exhibition in Cincinnati, Ohio. Those flours won the gold, silver and bronze medals, and the company subsequently changed the name of its highest-quality flour to Gold Medal.
Gold Medal was eventually shipped worldwide. Not as easy as it sounds more than 100 years ago.
Shipping flour in sacks proved to be difficult. For one, sacks were loaded and unloaded repeatedly, often with hooks. What's more, the holds of ships could be damp.
An 1878 letter from Percy Young, a London commission merchant for Washburn Crosby, revealed "flour shipped in barrels received in better quality than a later delivery of flour in sacks."
Packaging, it seems, has always mattered. So have customers.
But the world was bigger back then, when communication was slow. Our customers could be like family.
"Our foreign customers ... are not merely buyers, but correspondents and friends of long standing …" said R. F. Bausman, who was in charge of our European, Mediterranean and North African markets in 1923.
Find out more at goldmedalflour.com.
Washburn Crosby established a European sales office in 1920. By 1923, our flour markets included Central and South America, the West Indies, West Africa, Brazil, Europe, the Mediterranean and North Africa. Here, it's delivered in Constantinople.
Washburn Crosby was one of the first American companies to export flour to Great Britain, in 1878. At left is an insurance certificate, dated January 17, 1878, for flour shipped from New York to Liverpool, England.
Norwegian explorer Roald Amundsen is recognized as the first person to have reached both the North and South Poles. He led the first expedition to traverse the Northwest Passage as well. On that adventure, he brought 35 tons of Gold Medal flour to feed his 10-member crew.
Charles "Speed" Holman, a well-known Minnesota pilot, turned his airplane into a flying billboard for Gold Medal in 1924. The plane was a familiar sight at county fairs in Minnesota and surrounding states. Tiny Gold Medal Flour sacks, attached to small parachutes, were dropped to crowds below. Later, small boxes of Wheaties parachuted from the plane.
Laurine Williams meant to send an old coupon to General Mills in 1984. She set it aside and didn't mail it until 2012. When she was 87. Seems that she found an original 1910 coupon that her mother had for a Gold Medal cook book. We redeemed her coupon. The cook book had been reprinted in the '80s. "I never expected to get one, but it was fun," Williams said.


text:
Q: Save NSDate and Doubles into Entity (CoreData) I can get it to work fine using just Strings but if I try to use Doubles or NSDates then I get an error:
"Cannot assign value of type "NSDate?" to type "String?"
"Cannot assign value of type "Double?" to type "String?"
@IBAction func save(_ sender: Any) {

    if item != nil {

        item?.startdate = startDate.text
        item?.pickup = pickup.text
        item?.miles = miles.text
        item?.company = company.text
        item?.destination = destination.text
        item?.enddate = endDate.text

    } else {

        let entitydescription = NSEntityDescription.entity(forEntityName: "Entity", in: pc)

        let item = Entity(entity: entitydescription!, insertInto: pc)

        item.startdate = startDate.text
        item.pickup = pickup.text
        item.miles = miles.text
        item.company = company.text
        item.destination = destination.text
        item.enddate = endDate.text

    }

    do {

        try pc.save()

    } catch {

        print(error)
        return
    }

    navigationController!.popViewController(animated: true)

}

Here is what type each field is:
    @NSManaged public var startdate: NSDate?
    @NSManaged public var pickup: String?
    @NSManaged public var miles: Double
    @NSManaged public var company: String?
    @NSManaged public var destination: String?
    @NSManaged public var enddate: NSDate?

A: You need to convert miles.text, startdate.text and enddate.text to Double, NSDate and NSDate, respectively.
For startdate.text / enddate.text:
I'm not sure how what limit you have set for these values when the item is saved, but you should use a default value just incase the conversion fails. For this example, assume the dates are formatted "5/15/17" which takes the format M/d/y
let defaultDate = NSDate() //current date
let dateFormatter = DateFormatter()
dateFormatter.dateFormat = "M/d/y"

if let startDateText = startdate.text, let startDate = dateFormatter.string(from: startDateText) as? NSDate {
    item?.startdate = startDate
} else {
    item?.startdate = defaultDate
}

if let endDateText = startdate.text, let endDate = dateFormatter.string(from: endDateText) as? NSDate {
    item?.startdate = endDate
} else {
    item?.startdate = defaultDate
}

For miles.text:
Same idea, use a default value incase the conversion failed based on what the text will be for item.miles
if let milesText = miles.text {
    item?.miles = Double(miles.text) ?? 0.0 //default is 0.0
} else {
    item?.miles = 0.0
}

or an easy one-liner—
item?.miles = Double(miles.text ?? "0.0")

if there's a specific default value you have in mind, just declare it before you assign the item's property,
let defaultMilesStr = "0.432"
item?.miles = Double(miles.text ?? defaultMiles)

Also, just a tip, it's good practice to not leave optionals wrapped when assigning values. So even though there was check to make sure item != nil, it's overall better to safely unwrap item with a "guard" or "if-let". Since you are creating a new item if one doesn't exist, id go with if-let in this case:
if let item = item {

  // assign values to item's prop's
  // item.startdate = .....

} else if let entityDescription = NSEntityDescription.entity(forEntityName: "Entity", in: pc), let item = Entity(entity: entityDescription, insertInto: pc) {

  // assign values to item's prop's
  // item.startdate = .....

}

//further execution

A: Convert your date string to NSdate then you are able to save that
Try this code i have provide my date string you mat change with your format
let dateString = "Thu, 22 Oct 2015 07:45:17 +0000"
let dateFormatter = DateFormatter()
dateFormatter.dateFormat = "EEE, dd MMM yyyy hh:mm:ss +zzzz"
dateFormatter.locale = Locale.init(identifier: "en_GB")
let dateObj = dateFormatter.date(from: dateString)
dateFormatter.dateFormat = "MM-dd-yyyy"

A: Try this :
let dateFormatter = DateFormatter()
dateFormatter.dateFormat = /* date_format_you_want_in_string from
                            * http://userguide.icu-project.org/formatparse/datetime
                            */
let date = dateFormatter.date(from: /* your_date_string */)

and set it as :
item?.date = date

For miles you can use :
if let dMiles = Double(miles.text!) {
    item?.miles.text = dMiles
} else {
    print("Not a valid Double: \(textField.text!)")
}

Hope it Helps!!

redpajama_set_name: RedPajamaStackExchange


Meri Brown has been a key cast member on Sister Wives ever since the premiere of this controversial reality show.
But just because she's been in the spotlight for a number of years, that doesn't mean she's a known commodity.
1. She Was HOW Old When She Married Kody Brown?
Only 19, way back in 1990. Meri was studying to be a psychologist at one point, but gave it up once the reality show became a hit after its 2010 premiere.
2. For How Long Did She Know Kody Before They Got Married?
Just four months. They got engaged after just two months.
3. She Has HOW Many Siblings?!?
Six in total: four sisters (Teresa Barber, Rebekah Barber, Elaine Barber, Deborah Barber) and two brothers (Adam Barber and Marc William Barber).
They tried to have kids from the very beginning, but it took them nearly a half decade. Finally, Meri and Kody welcomed their first child, a daughter named Mariah Brown, on July 29,1995.
5. When Did Meri and Kody Get Divorced?
In 2014, after almost 25 years of marriage. But she has remained on the show and by Kody's side ever since.
6. Wait… What? Why and How?
PreviousGwyneth Paltrow and Brad Falchuk: We're Engaged!
Caitlyn Jenner: The Kardashians are All Drama, I Regret Nothing!


text:
Q: Run Docker for Windows without user login I'm currently setting up a Windows 10 PC as a remote build agent which is intended to use Docker to automatically build applications. The problem is, that I have to connect to the machine at least once a day because Docker only starts on user login.
Is there a way to start Docker when Windows boots up, maybe with the task scheduler? Alternatively, is there a way to reliably prevent auto logout from Windows 10?


Climator unit ensures optimum and exact humidity and temperature for quality bread production. This unit has a speacial steam producer and steam quantity can be arranged as an automatically thus long life and durability of climator unit is provided. The air sucking by fan which is located on top of the device is blown toward to fermentation chamber as mixing with heat and humidity. Control panel is separated from the device and it can be plugged on existing chambers. Its weight is 50 kg and humidity gap is %60 RH / %95 RH and heating gap is +20 C/ +50 C. Capacity of this device is 10 m3 / hour. Electric power is 6,5 kw.


text:
[OpenResty](http://openresty.org/) based reverse proxy serving cached pages from Redis without [Vue StoreFront](https://www.vuestorefront.io/) (VSF or VSF API) calls, using LUA.

For every `GET` request, this proxy does the following:

* If requested URI is a static asset, skip and default to proxying VSF or VSF API
* Remove unnecessary Query String params from request URI (ie. `utm_` ones) to increase cache-hit ratio
* Fetch cache version from VSF (if not already cached, cache in Redis for 60 seconds otherwise)
* Fetch full page cache from Redis
  * If available, return it (including headers)
  * If not available, default to proxying VSF (which will then cache the page in Redis)

This allows achieving much better performances without needing to query VSF Node.js app.

## Usage

Following environment variables **must** be set:

* `VSF_BACKEND_HOST`: hostname (without HTTP or port) of VSF backend
* `VSF_BACKEND_PORT`: port of VSF backend (ie. `3000`)
* `VSF_API_BACKEND_HOST`: hostname (without HTTP or port) of VSF API backend
* `VSF_API_BACKEND_PORT`: port of VSF API backend (ie. `3000`)
* `REDIS_HOST`: hostname of Redis instance
* `REDIS_PORT`: hostname of Redis instance (ie. `6379`)
* `VSF_CACHE_REMOVE_QS_ARGS`: Query String params to remove to increase cache-hit ratio (separated by a comma, no whitespace), in addition to default ones (see [`redis_fpc.lua`](lua/redis_fpc.lua))

## Requirements

The following patch in **VSF** code is required to expose the cache version:

`core/scripts/server.[js|ts]`
```js
...

const fs = require('fs')

function cacheVersion (req, res) {
  res.send(fs.readFileSync(resolve('core/build/cache-version.json')))
}

app.get('/cache-version.json', cacheVersion)

...
```

## Enhancements

* [x] Allow exluding query string params from cache key (ie. Google Analytics tracking `utm_*`) trough an environment variable
* [x] Exclude assets based on extensions (ie. `.js`, `.css`, etc.)

## License

VSF Proxy source code is completely free and released under the [MIT License](https://github.com/ClickAndMortar/Docker/blob/master/LICENSE).

redpajama_set_name: RedPajamaGithub


Representations in the auditory cortex might be based on mechanisms similar to the visual ventral stream; modules for building invariance to transformations and multiple layers for compositionality and selectivity. In this paper we propose the use of such computational modules for extracting invariant and discriminative audio representations. Building on a theory of invariance in hierarchical architectures, we propose a novel, mid-level representation for acoustical signals, using the empirical distributions of projections on a set of templates and their transformations. Under the assumption that, by construction, this dictionary of templates is composed from similar classes, and samples the orbit of variance-inducing signal transformations (such as shift and scale), the resulting signature is theoretically guaranteed to be unique, invariant to transformations and stable to deformations. Modules of projection and pooling can then constitute layers of deep networks, for learning composite representations. We present the main theoretical and computational aspects of a framework for unsupervised learning of invariant audio representations, empirically evaluated on music genre classification.


Greetings,this is my first question here.From yesterday my account isn't syncing data from the google account automatically.When I navigate to Settings>Account>it shows syncing error.
PS I have Moto E2 3G with Android 5.
Yes,this persists after a reboot.I ll clear cache partition and let you know if that works.
Trying to format sd card and get this. err not using parted v1.8.8.1.179-aef3!
Should upgrade my EE Kestrel's OS to the latest ?